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Reasonable suspicion required for strip-searches.

Since the early 1980s, courts have imposed restrictions on when an arrestee can be strip-searched. (1) These decisions have all reached the same conclusion: An arrestee cannot be strip-searched without "reasonable suspicion" to justify the search. Policies that mandate strip-searching all arrestees are unconstitutional. All 10 of the 12 federal circuit courts to have considered the issue have reached this conclusion. (2) The Supreme Court, however, has refused to review arrestee strip-search cases several times. (3)

Strip-searches may be routine for those working in jails and prisons but they are not routine for courts. The courts' attitude toward strip-searches is captured in a quotation dating back to Mary Beth G. v. City of Chica-go. The court described strip-searches as "demeaning, dehumanizing, undignified, humiliating, terrifying, un-pleasant, embarrassing, repulsive, signifying degradation and submission." What makes this dramatic quotation particularly noteworthy is that other courts have quoted it more than 50 times, including as recently as last year.

The day after the first court said not all arrestees entering the jail could be strip-searched, some jail administrators began looking for ways around the ruling. Relying on labels such as "clothing searches" or "shower observation," some officials try to ensure that a correctional officer sees everyone entering the jail in a state of complete undress. Others try to read the cases as restricting strip-searches of people during the booking process but not limiting the power to strip-search when someone moves from booking into a general population housing unit. In practice, this usually means that those who are not released within a short time after going through the booking process are strip-searched.

Recent decisions have condemned such practices. These decisions state a broader rule than the early strip-search cases: Any practice that requires an arrestee to be seen naked by jail staff violates the Fourth Amendment unless reasonable suspicion exists to justify the search. Forget "clothing exchanges," "delousing," "shower observation," "general population placement" or similar practices that require staff to observe naked arrestees. Without reasonable suspicion to justify the observation, courts consistently find such practices unconstitutional.

Clothing Exchange Decisions

A decision from the 1st Circuit last year directly addressed the "clothing search" process in Wood v. Hancock County Sheriff's Department. (4) In that case, jail practice required every arrestee to completely disrobe under the observation of a correctional officer as part of the booking process. The officer's main task was to search the arrestee's clothing but "maintain a visual" on the inmate both for the officer's safety and to prevent the inmate from removing contraband from his or her clothing and hiding it on his or her person. The officer usually saw the inmate naked for only a couple of seconds. The process did not require observing a male inmate's scrotum or a female inmate's breasts, nor did it demand that inmates bend over, spread their "butt cheeks and cough." (5)

Citing other 1st Circuit decisions that go back to 1985, the court held that the few seconds that the officer observed the naked inmate amounted to a strip-search because the court defined a strip-search as a "visual inspection of the naked body." (6)

The holding might have produced less confusion if the court did not insist on basing its conclusion on a definition of strip-search that no jail official would use and, instead, had simply said "an arrestee cannot be required to expose his/her naked body to a correctional officer without reasonable suspicion."

Another 2003 decision--this one from the 7th Circuit--drew a line between a rule that required an arrestee to remove all of his or her clothing and a clothing exchange process that only required the inmate to strip to his or her underwear, approving the latter (Stanley v. Henderson). (7) The officer did not touch the arrestee, visually examine any body cavities or see the inmate completely naked. An officer observed the process to help reduce the possibility of weapons or contra-band being brought into the jail, making it a search in the court's mind. The court said it did not have to decide if a strip-search had taken place.

Courts balance several factors in deciding if a particular type of search meets the Fourth Amendment requirement of reasonableness. The most important factors in the balancing test are the government's need for the search weighed against the intrusiveness of the search. The greater the intrusion, the greater the government need to justify it. (8)

In the Stanley case, the court had to decide if the government's need for observing the arrestee during the clothing exchange process justified the intrusion inherent in seeing the arrestee stripped down to her underwear. (In Stanley, the woman who brought the lawsuit was not wearing a bra, so the intrusion into her privacy was even greater than the jail policy demanded. However, the court seemed to say this was more her problem than the jail's and did not factor it into the decision.) The court felt the degree of intrusion involved in the clothing exchange was minimal compared with the "humiliating, dehumanizing, undignified" type of strip-search it had condemned in Mary Beth G. many years ago. (9)

The jail offered two justifications for the clothing exchange process: to prevent contraband from entering the jail and to inventory the arrestee's clothing and personal effects. The court accepted these as reasonable but clearly was more persuaded by the first. Interestingly, the jail did not mention any health, injury discovery or personal identification (scars, piercings, tattoos) justifications for its rule.

To the 7th Circuit, requiring an arrestee to strip to his or her underwear in front of an officer of the same sex in an area where other people are unable to observe the process amounts to "relatively minimal" intrusion. (10) The 1st Circuit notes the Stanley result in the Wood case, but comments that the facts of Wood did "not require us to explore when 'something less than full nudity' might constitute a strip-search." (11)

So, if broad rules can be synthesized out of these two cases (a risky process, since many other circuits have yet to weigh in on these subtle search issues), they would include that:

* Requiring all arrestees to remove all their clothes under the observation of an officer as part of the jail admission process will be found unconstitutional, regardless of the reason for the practice or the label it has.

* Any "take off all your clothes and ..." rule as part of the admission process will require reasonable suspicion.

* Requiring that the arrestee strip to his or her underwear will be acceptable, assuming the process is carried out in a professional manner and in a place affording the arrestee some privacy.

General Population Placement

Many jail administrators argue that the individualized reasonable suspicion requirement applies only to strip-searches conducted as part of the booking process and that all arrestees who are moved from the booking and admissions area to a general population housing unit can be thoroughly strip-searched. In probably most situations, this means everyone who is not released at the conclusion of the booking process or very shortly thereafter will be strip-searched since there is no intermediate housing unit between booking and general population.

To win this argument under the balancing test (interests of the government balanced against the scope of the intrusion), officials must show that the jail's security interests have increased between the time the arrestee entered the jail until the person is ready to be moved to more permanent housing to the point that they outweigh the arrestee's privacy interests. Courts consistently reject this argument and instead rule that placement in the general population alone does not justify strip-searching an arrestee who was not already subject to a strip-search as part of the booking process. The reasonable suspicion requirement still applies. (12)

One can find earlier cases that suggest that general population placement could justify a strip-search. Dobrowolskyj v. Jefferson County, Ky. (13) came as close as any to saying that general population placement could justify a strip-search but the same court later took a narrower approach, saying that "intermingling alone has never been found to justify such a search without consideration of the nature of the offense and the question of whether there is any reasonable basis for concern that the particular detainee will attempt to introduce weapons or other contraband into the institution." (14)

The prevailing body of case law today holds that placement in the general population alone does not justify strip-searching arrestees. There is no body of case law to the contrary.

Reasonable Suspicion

Jail administrators who have embraced the reasonable suspicion test and not tried to find "clothing exchange" or "general population" loopholes report that the reasonable suspicion rule does not lead to an upsurge of contraband in the jail, despite fears that it would. The jail administrator who either ignores the reasonable suspicion rule or tries to interpret it extremely narrowly invites serious litigation that under current court decisions, appears impossible to win. In fact, in a 2003 decision (Dodge v. County of Orange), court-reviewed data on arrestee strip-searches conducted both before and after a reasonable suspicion rule was implemented in lieu of a blanket strip-search policy. The judge concluded that had the jail been following a reasonable suspicion policy during the entire time covered by the data, it would have missed finding one item of contra-band out of 23,000 admissions.


(1) Logan v. Shealy, 660 F.2d 1007 (4th Cir., 1981). cert denied sub nom Clements v. Logan, 455 U.S. 942 (1982) and Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir., 1983) are two of the earliest decisions.

(2) For a more detailed review of case law through early 2001, see: Strip searches of arrestees incident to booking into jail is most controversial and litigated correctional search issue. 2001. Correctional Law Reporter, 13(June/July):3.

(3) Giles v. Ackerman, 746 F.2d 614 (9th Cir., 1984), cert denied 471 U.S. 1053(1985)

Logan, supra, n. 1

Weber v. Dell, 814 F.2d 796 (2d Cir., 1986), cert denied sub nom County of Monroe v. Weber, 483 U.S. 1020 (1986)

(4) 354 F.3d 57 (1st Cir., 2003)

(5) 354 F.3d at 60

(6) XIII Correctional Law Reporter at 4.

(7) 377 F.3d 961 (7th Cir., 2003)

(8) 377 F.3d at 964, citing Bell v. Wolfish, 441 U.S.520, 559 (1979)

(9) 337 F.3d at 966

(10) 377 F.3d at 967

(11) 354 F.3d at 63

(12) Roberts v. Rhode Island, 239 F.3d 107 (1st Cir., 2001)

Chapman v. Nichols, 989 F.2d 393 (10th Cir., 1993)

Walsh v. Franco, 849 F.2d 66 (2d Cir., 1988) (finding that it was "clearly established" in the 1980s that placement in the general population did not justify a blanket strip-search policy)

Giles v. Ackerman, supra, n. 3.

(13) 823 F.2d 955 (6th Cir., 1987)

(14) Masters v. Crouch, 872 F.2d 1248, 1254 (6th Cir., 1989)

Stanley v. Henderson, 377 F.3d 961 (7th Cir., 2003)

William C. Collins is a lawyer specializing in correctional law. He is the author of the American Correctional Associaton's Correctional Law for the Correctional Officer and cofounder and co-editor of the Correctional Law Reporter.
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Title Annotation:Judicial News
Author:Collins, William C.
Publication:Corrections Today
Geographic Code:1USA
Date:Jun 1, 2004
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